Wema Bank Plc V. Alhaji Idowu Fasasi Solarin Osilaru (2007)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the Judgment of Saula J. of the Ogun State High Court while sitting at Sagamu in suit No. HCS/53/2000 dated 29th July, 2004 wherein he upheld the respondent’s claim in its entirety and dismissed the Appellant’s counter-claim. At the lower court, the respondent therein as plaintiff took out a Writ of Summons against the appellant as defendant wherein he sought the under-mentioned reliefs viz:-

(1) A declaration that the defendant’s seizure and detention of the sum of five million, seven hundred and ninety three thousand, three hundred and nineteen naira, sixty kobo (N5,793,319.60k) the insured sum paid to the defendant on behalf of the plaintiff in respect of the latter’s buildings at 147 Akarigbo Street, Sabo, Sagamu for the purposes of repairing and renovating the plaintiffs buildings that were destroyed and damaged by fire and burglars on the 18th day of July, 1999 during communal clash in Sagamu is unlawful and illegal.

The plaintiff also claims interest on the said sum of N5,793,319.60k at the rate of 21% monthly from the defendant from 1st May 2000 to 6th day of June 2000 and at the same interest rate of 21% monthly from 7th day of June, 2000, until final determination of the case.

(2) A declaration that the conversion by the defendant to its own use of the insured sum of N5,793,319.60k paid to it on behalf of the plaintiff for the purposes of repairing and renovating plaintiffs building is improper, unlawful and in bad faith.

(3) An order that the defendant’s continuous withholding of the sum of five million, seven hundred and ninety three thousand three hundred and nineteen naira, sixty kobo (N5,793,319.60k) insured sum paid through it for the repairs, replacement and renovation of plaintiffs damaged properties at 147 Akarigbo Street, Sabo, Sagamu is wrongful and irregular and defendant should repay same to plaintiff.

Upon the receipt of the statement of claim which also contained the above reliefs, the Appellant filed his defence and counter claim.

Paragraph 25 of the said counter claim states:-

“Whereupon the defendant counter claims against the plaintiff for:-

(i) The payment of it sum of N172,335,84k (one hundred and seventy two thousand, three hundred and thirty five naira, eighty- four kobo) as at 17th May, 2000 being the outstanding balance of the credit/overdraft facility granted at the plaintiffs behest of which repayment was secured by a legal mortgage on the plaintiffs property situate and being at 147 Akarigbo Street, Sabo, Sagamu, Ogun State of which the plaintiff has now defaulted in paying.

(ii) Interest on the said sum of N172,335,84k (one hundred and seventy two thousand, three hundred and thirty five naira, eighty-four kobo) at the rate of 34% per annum from the 17th of May, 2000 until liquidation of the entire debt.

(iii) A declaration that the defendant is entitled to sell the plaintiffs building situate and being at 147, Akarigbo Street, Sabo, Sagamu, Ogun State pledged/mortgaged as security by the plaintiff for the overdraft/credit facility granted by the defendant to the plaintiff, and

(iv) An order for the sale of the said property.

The synopsis of the evidence adduced at the court below is that the Respondent is a customer of the Appellant bank and in March, 1998, the Respondent took two facilities from the Appellant as follows:-